Semenovich v. Project Performance Corporation, Inc.

Filing 70

MEMORANDUM OPINION re Motion for Summary Judgment. Signed by District Judge James C. Cacheris on 3/18/16. (klau, )

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
YANINA SEMENOVICH,

)
)
)
)
)
)
)
)
)
)

Plaintiff
v.
PROJECT PERFORMANCE COMPANY,
INC.,
Defendant.

1:14cv1780 (JCC/MSN)

M E M O R A N D U M

O P I N I O N

This matter is before the Court on Defendant Project
Performance Company’s (“PPC” or “Defendant”) Motion or for
Summary Judgment.

[Dkt. 41.]

For the following reasons, the

Court will grant the Defendant’s Motion for Summary Judgment in
part and deny the motion in part.
I. Background
Plaintiff Yanina Semenovich (“Plaintiff”) was an
employee of Defendant PPC from July 2009 until June 7, 2012.
(Pl.’s Mem. in Opp. [Dkt 49] at 1.)

PPC is an information

technology and management consulting firm, whose primary
business consists of contracting out skilled consultants to
clients and billing them hourly.
47] at 3.)

(Def.’s Mem. in Supp. [Dkt.

PPC relies on its employees to track and report

their hours worked on a daily basis, filling out a timecard

1

recording both hours worked on billable accounts and hours
worked on non-billable, internal matters.

(Id. at 4.)

If an

exempt employee failed to enter any time for a particular
workweek, then PPC’s payroll department would have no way of
knowing that employee performed any work during that week, and
the employee would receive no pay for that workweek.

(Id.)

Plaintiff was originally hired as a Principal Analyst
with a starting salary of $105,000 a year.

Her first role at

PPC was as a project manager on the “Tokyo Millennium”
reinsurance company account.

(Pl.’s Mem. in Opp. at 8.)

At the

time of her interview, that account was run by Principal Michael
Fleckenstein, also an employee of PPC.

(Id.)

Semenovich

received decent performance reviews her first several years at
PPC, and received several increases in salary.
21.)

(Id. at note

Plaintiff ultimately reached a salary of $113,000 a year

in 2013.

(Id.)

However, Plaintiff began to worry and complain

about her lack of promotion within PPC and began to voice those
concerns to management sometime in late 2010 or early 2011.
(Id. at 11-12.)

During this time, PPC underwent several

reorganizations and the practice to which Plaintiff was
originally hired was disbanded.

(Def.’s Mem. in Supp. at 7.)

Plaintiff was left without a practice or a direct supervisor, so
Plaintiff began working as a kind of floater, moving across
divisions and practices and providing advisory technical
2

services or strategic support to other groups.

(Id.)

While

Plaintiff’s work still received good reviews, very little of it
was billable in this new role.

(Id.)

in December 2011 reached only 16%.
73.)

Plaintiff’s billable rate

(Pl.’s Mem. in Opp. at Note

During that same period, late 2011, Plaintiff became

extremely unreliable in submitting her timecards on a daily
basis as required by company policy.
7-8.)

(Def.’s Mem. in Supp. at

In October 2011, PPC hired Michael Freeman to be its new

CEO in an effort to turn around the company’s worrisome
financial situation.

(Id.)

In November 2011, PPC underwent a

reduction in force which led to a large reorganization and the
promotion of Zach Wahl to Vice President.

(Id.)

Plaintiff was

distraught that she had not been awarded the Vice President
position, and she confronted Dale Tuttle, PPC’s Chief
Technological Officer about the decision to promote Wahl.
(Pl.’s Mem. in Opp. at 13.)
Under Michael Freeman, PPC and their new CFO, Dan
Rice, began to crack down on the amount of overhead labor costs
by closely monitoring which employees were being paid without
bringing in money for PPC.

(Def.’s Mem. in Supp. at 8.)

The

new management team was concerned about Plaintiff’s role with
the company because of her chronically low billable rate and her
heavy use of overhead.

(Id.)

They were also concerned by the

Plaintiff’s lack of experience leading projects or supervising
3

teams.

(Id.)

Additionally, by Fall of 2011, Plaintiff had

exceeded her paid leave allotment and accumulated a high amount
of negative leave by taking paid leave that she had not yet
earned.

(Id.)

In November 2011, Freeman told Chief Information

Officer Tony Cicco and Vice President of Human Resources
Jennifer Gertenbach that Plaintiff’s current situation was
untenable and they needed to either find her a productive role
or let her go.

(Id.)

Throughout the late fall and winter of

2011 Cicco and Gertenbach attempted to put Plaintiff in touch
with various teams at PPC which might have had a role for her.
(Id. at 10.)

In early January 2012 Plaintiff was told by Ms.

Gertenbach that if she did not find billable work soon, her
employment might be terminated.

(Id.)

In mid-January 2012, Plaintiff reached out to Nathan
Smith regarding potential work on a bid proposal to the
Environmental Protection Agency (“EPA”).

(Id. at 11.)

This

eventually led to Plaintiff working on that project and
receiving compensation for time worked in that capacity from
March 8, 2012 to March 28, 2012.

(Pl.’s Mem. in Opp. at 15.)

Plaintiff was subsequently listed as a “key person” on the
resulting bid proposal to the EPA.

(Id. at 2.)

However, Plaintiff did not receive a pay check for the
pay periods between November 16, 2011 and March 7, 2012, or for
the pay periods between March 29, 2012 and July 7, 2012. (Id. at
4

13-14; Def.’s Mem. in Supp. at 26.)

During those time periods,

Plaintiff either did not submit timesheets, or submitted
timesheets indicating that she was on leave without pay
(“LWOP”). (Def.’s Mem. in Supp. at 26.)

Plaintiff contends that

she was continuing to work during this time, and was submitting
her timesheets indicating LWOP only because she was not provided
with a valid charge code by Defendant.
14.)

(Pl.’s Mem. in Opp. at

Defendant, on the other hand, argues that the Plaintiff

was not performing any work for the company during these time
periods.

(Def.’s Mem. in Supp. at 26, 29.)
In April of 2012, Defendant transferred Plaintiff to

Mr. Smith’s “Energy, Environment, and Climate Solutions”
division.

(Id. at 11.)

On April 19, 2012, Mr. Smith emailed

Ms. Gertenbach informing her that Plaintiff had declined to join
his division.

(Romansic Decl. [Dkt. 43-1] Ex. 18.)

On April

17, 2012, after an e-mail conversation with Ms. Gertenbach
regarding Plaintiff’s incomplete timesheets, Plaintiff submitted
a “demand letter” to Defendant’s CEO, Mike Freeman. (Id. at Ex.
41, Ex. 19.)

In her demand letter, Plaintiff notified Defendant

that she had been in touch with an attorney, accused Defendant
of a “long time pattern of discrimination and discriminatory
promotion practices,” and demanded a promotion to “Vice
President of Strategic Technology” and a retroactive pay
increase.

(Id. at Ex. 19.)

Mr. Freeman referred the matter to
5

Ms. Gertenbach for handling.

(Def.’s Mem. in Supp. at 14.)

On

April 19, 2012, Ms. Gertenbach informed Plaintiff that
Defendant would be conducting an investigation into the claims
made in the demand letter, asked Plaintiff when she would

be

available to meet, and told Plaintiff to refrain from performing
any work duties for PPC until the complaint was resolved.
(Romansik Decl. Ex. 21.)

When Plaintiff responded, she informed

Defendant that she was only willing to meet with her husband
present.

(Id.)

Defendant informed Plaintiff that her husband

would not be permitted to attend the meeting, and Plaintiff
ultimately decided against attending the meeting.

(Id.)

On

April 27, 2012, an attorney representing Plaintiff informed
Defendant that Plaintiff intended to pursue legal action.

(Id.

at Ex. 22.)
That same day, April 27, 2012, Plaintiff was informed
that Defendant had won the EPA contract she had been working on
that March.

(Pl.’s Mem. in Opp. at 16.)

On May 8, 2012,

Defendant requested the EPA’s approval to remove Plaintiff as a
key person on the EPA contract.

(Romansik Decl. Ex. 24.)

On

May 14, 2012, Plaintiff sent an email titled “final notice” to
John Lowry, the CEO of Defendant’s parent company.

(Id. at 27.)

In this email, Plaintiff complained about her removal from the
EPA contract and stated that she would pursue legal action

6

unless Defendant accepted her salary and promotion demands
within two days.

(Id.)

Defendant was unwilling to concede to Plaintiff’s
demands, and on June 7, 2012, Defendant informed Plaintiff that
they were terminating her employment effective immediately.
(Def.’s Mem. in Supp. at 17.)

On December 24, 2014, Plaintiff

brought this suit alleging discrimination in violation of Title
VII of the Civil Rights Act of 1964, the creation of a hostile
work environment in violation of Title VII, retaliation for
engaging in a protected activity in violation of Title VII,
unpaid wages in violation of the Fair Labor Standards Act, and
breach of implied contract stemming from unpaid wages.
Compl. [Dkt. 23] ¶¶ 48-76.)

(Am.

After discovery, Defendant filed

this motion for summary judgment.

The matter has been briefed

and argued, and it is now ripe for decision.
II. Legal Standard
Summary judgment is appropriate only where, on the
basis of undisputed material facts, the moving party is entitled
to judgment as a matter of law.

See Fed. R. Civ. P. 56; Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986).

In reviewing the

record on summary judgment, “the court must draw any inferences
in the light most favorable to the non-movant [and] determine
whether the record taken as a whole could lead a reasonable
trier of fact to find for the non-movant.”
7

Brock v. Entre

Computer Ctrs., 933 F.2d 1253, 1259 (4th Cir. 1991)(citations
omitted).
Once a motion for summary judgment is properly made
and supported, the opposing party has the burden of showing that
a genuine dispute exists.

See Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); see also Ray
Commc’ns, Inc. v. Clear Channel Commc’ns, Inc., 673 F.3d 294,
299 (4th Cir. 2012).
III. Analysis
The Plaintiff brings five counts alleging,
respectively, (i) gender discrimination in violation of Title
VII, (ii) the creation of a hostile work environment in
violation of Title VII, (iii) retaliation for engaging in a
protected activity in violation of Title VII, (iv) improper
withholding of wages in violation of the Fair Labor Standards
Act, and (v) breach of implied contract stemming from unpaid
wages.

(Am. Compl. ¶¶ 48-76.)

The Court addresses each of

those claims in turn.
A.

Plaintiff’s Gender Discrimination Claim

Count I of Plaintiff’s complaint alleges that
“Defendant discriminated against the Plaintiff on the basis of
sex in violation of Title VII by denying the Plaintiff equal
terms and conditions of employment and/or by terminating her.”
(Compl. ¶ 50.)

Because Plaintiff offers no direct evidence of
8

discrimination, her gender discrimination claims are analyzed
under the burden-shifting framework of McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-805 (1973).

Under the McDonnell

Douglas framework, the plaintiff must first prove a prima facie
case of discrimination, then the burden shifts to the defendant
to articulate a “legitimate, nondiscriminatory reason for the
employee’s rejection.”

Id. at 802.

If the defendant is able to

articulate a legitimate reason for the adverse employment
action, then the burden shifts back to the plaintiff to
demonstrate, by a preponderance of the evidence, that the
offered reason was merely a pretext for discrimination.

Id. at

804.
In order to prove a prima facie case of gender
discrimination under Title VII, a plaintiff must establish that:
(1) she is a member of the protected class,
(2) she suffered an adverse employment
action, (3) she was performing her job
duties at a level that met her employer’s
legitimate expectations at the time of the
adverse employment action, and (4) the
position remained open or was filled by
similarly-qualified
applicants. . . outside
the protected class.
Jyachosky v. Winter, 343 F. App’x 871, 876 (4th Cir. 2009)
(citing Holland v. Washington Homes, Inc., 487 F.3d 208, 214
(4th Cir. 2007)); Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 513
(4th Cir. 2006).

9

Title VII also requires that “an EEOC charge must be
filed within 300 days after the alleged unlawful employment
practice occurred.”

Tomasello v. Fairfax Cty., No. 1:15-cv-95,

2016 WL 165708, at *7 (E.D. Va. Jan 13, 2016) (citing 42 U.S.C.
§ 2000e-5(e)(1)(Title VII)).

Claims stemming from allegedly

discriminatory or retaliatory acts which occurred more than 300
days prior to the filing of an EEOC charge are time barred.
Plaintiff’s EEOC charge was filed on October 11, 2012.

Any

alleged discriminatory or retaliatory conduct must therefore
have occurred no earlier than December 16, 2011, 300 days prior
to Plaintiff’s filing the EEOC charge.

Any claims stemming from

allegedly discriminatory or retaliatory acts occurring before
December 16, 2011 are therefore time-barred.
Plaintiff’s allegations about being passed over for
promotion in November 2011 stem from actions which took place
before December 16, 2011 and are time barred.

The only alleged

adverse actions which occurred within 300 days of Plaintiff
filing her EEOC complaint were her removal from the “key person”
listing on the EPA contract and her termination by PPC.

In

order to constitute an adverse employment action, there must be
a “decrease in compensation, job title, level of responsibility,
or opportunity for promotion.”

James v. Booz-Allen & Hamilton,

Inc., 368 F.3d 371, 376 (4th Cir. 2004).

10

Defendant concedes

that both removal from the EPA listing and termination were
adverse employment actions.
While Plaintiff is a member of a protected class and
was subject to an adverse employment action, she is unable to
prove that “she was performing her job duties at a level that
met her employer’s legitimate expectations at the time of the
adverse employment action,” the third element of a prima facie
case for gender discrimination.

Jyachosky, 343 F. App’x at 876.

Plaintiff points to her performance reviews as evidence that she
was performing her job up to her employer’s legitimate
expectations.

However, ample evidence in the record

demonstrates that by 2012, Plaintiff’s billable rate had reached
an unacceptably low level, Plaintiff routinely failed to follow
company policy regarding filling out her timesheet, and
Plaintiff showed little interest in taking on a role which was
more geared towards billable work.

Moreover, the documents

detailing the Defendant’s concern over Plaintiff’s billable rate
predate Plaintiff’s removal from the EPA key person listing or
Plaintiff’s firing, indicating that they were not manufactured
after Plaintiff’s departure to serve as a pretext.
Even drawing all inferences in the light most
favorable to Plaintiff, the Court cannot conclude that Plaintiff
can demonstrate she was performing her duties at a level that
met her employer’s legitimate expectations when she was removed
11

from the EPA contract and subsequently fired given Defendant’s
serious, documented concerns about Plaintiff’s billable rate and
time-card practices.

Accordingly, Plaintiff cannot maintain an

action for gender discrimination, and the Court grants
Defendant’s motion for summary judgment with respect to this
claim.
B.

Plaintiff’s Harassment Claim

Plaintiff’s Count II alleges that “Defendant PPC
created a hostile work environment when it withdrew all job
assignments from the Plaintiff” because of her gender.
¶ 54.)

(Compl.

In order to succeed with an action for hostile

environment sexual harassment, a plaintiff must show conduct
that “(1) was unwelcome, (2) was based on her sex, (3) was
sufficiently severe or pervasive to alter the conditions of her
employment and create an abusive work environment, and (4) was
imputable to her employer.”

Ocheltree v. Scolion Prods., Inc.,

335 F.3d 325, 331 (4th Cir. 2003).

Plaintiff has clarified that

she is proceeding on the theory that PPC “excluded [Plaintiff]
from important areas of the workplace” by failing to provide her
with work assignments between November 24, 2012 and July 7,
2012, apart from a three week period where PPC allowed Plaintiff
to work on the EPA proposal.

(Pl.’s Mem. in Opp. at 6, 26.)

“[T]he sine qua non of a hostile work environment claim is the
presence, in the workplace, of . . . offensive remarks or other
12

actions that are, in and of themselves . . . insulting.”

Dawson

v. Rumsfeld, No. 1:05-cv-1270 (JCC), 2006 WL 325867, at *4 (E.D.
Va. Feb. 8, 2006); Bush v. Hagel, 2014 WL 345650, at *9 (E.D.
Va. 2014), aff’d 597 F. App’x 178 (4th Cir. 2015) (finding
plaintiff failed to state a claim for race based hostile work
environment as a matter of law where “there is no evidence of
any racial slurs or insults of any kind being used toward
plaintiff, nor was plaintiff in any way physically threatened”).
The kind of conclusory allegations about a general, vaguely
hostile atmosphere towards a particular employee made here are
not enough to sustain a hostile environment claim without
specific evidentiary examples of incidents of harassment
motivated by plaintiff’s protected characteristics or actions.
Causey v. Balog, 162 F.3d 795, 801 (4th Cir. 1998).
Accordingly, even if the Plaintiff’s harassment claim is
reasonably related to the gender discrimination claim submitted
to the EEOC, Plaintiff cannot succeed on the merits of a
harassment claim and the Court grants Defendant’s motion for
summary judgement as to Count II of the amended complaint.
C.

Plaintiff’s Retaliation Claim

Plaintiff’s Count III alleges that “[a]s a result of
her protected activity and opposition to practices made unlawful
under Title VII, Plaintiff was subjected to an adverse
employment action, upto [sic] and including termination.”
13

(Compl. ¶ 61.)

Claims for retaliation, like claims for

discrimination, are subject to the McDonnell Douglas burden
shifting framework.

In order to establish a prima facie case of

retaliation, a plaintiff must show “(i) that she engaged in
protected activity, (ii) that her employer took adverse action
against her, and (iii) that a causal relationship existed
between the protected activity and the adverse employment
action.”

Foster v. Univ. of Maryland-E. Shore, 787 F.3d 243,

249 (4th Cir. 2015)(internal quotations and alterations
omitted).
In order to engage in a protected activity under Title
VII, a plaintiff must only “prove that [she] opposed an unlawful
employment practice which [she] reasonably believed had occurred
or was occurring.”

Milladge v. OTO Dev., LLC, No. 1:14-cv-0194,

2014 WL 4929508, at *6 (E.D. Va. Oct. 1, 2014) (quoting Peters
v. Jenney, 327 F.3d 307, 320 (4th Cir. 2003)).

In the case at

hand, the demand letter contained language complaining about “a
long pattern of discrimination and discriminatory promotion
practices” and it expressed Plaintiff’s concerns that she had
“been exposed to retaliation as defined under Federal Title
VII.”

(Romansik Dec. Ex. 19.)

A reasonable juror could

conclude that Plaintiff was opposing what she reasonably
believed were unlawful acts of gender discrimination when she
submitted this letter.

Accordingly, for the purposes of this
14

summary judgment motion, the Court accepts that the demand
letter was a protected act.

Additionally, the parties agree

that Plaintiff’s removal from her position on the EPA contract
and eventually her termination at PPC were both adverse
employment actions.
Plaintiff argues that the deposition testimony of Ms.
Gertenbach, Defendant’s director of human resources, and Ms.
Romansik, Defendant’s Federal Rule of Civil Procedure 30(b)(6)
corporate representative, establishes a causal relationship
between Plaintiff submitting her demand letter and the
subsequent adverse employment actions.

Specifically, Plaintiff

points to an instance in Ms. Romansik’s testimony where Ms.
Romansik states that PPC made the decision to remove Plaintiff
from the EPA contract and list Plaintiff as unavailable to work
“based on, one, her demand letter.”
92:17-18.)

(Romansik Dep. [Dkt. 49-1]

Ms. Romansik goes on to further explain that the

decision was also motivated by “her refusal to work with
Jennifer Gartenbach, who was head of HR, to meet and discuss the
issues in the demand letter and to do an investigation.”
at 92:20-22; 93-1.)

(Id.

Defendant argues that Ms. Romansik’s

statement, taken in context, referred to the fact that Plaintiff
was demanding a title and pay raise that Defendant had no
intention of granting.

(Def.’s Reply [Dkt. 56] at 6.)

However,

based on Ms. Romansik’s statement, a reasonable jury could find
15

that Defendant took Plaintiff off of the EPA contract and
eventually terminated her employment because of her protected
activity of opposing perceived gender discrimination.
Additionally, Ms. Romansik’s apparent admission that Plaintiff’s
demand letter was the number “one” cause of Plaintiff’s removal
from the contract and subsequent termination is enough for a
reasonable juror to conclude that the other reasons given are
pretextual.

Therefore, the Court denies Defendant’s motion for

summary judgment with regard to Plaintiff’s claim for
retaliation, Count III of the amended complaint.
D.

Plaintiff’s FLSA Claim

Count IV of Plaintiff’s complaint alleges that
Defendant violated the Fair Labor Standards Act (“FLSA”) by
willfully failing to pay Plaintiff for time worked during the
periods of November 6, 2011 to March 7, 2012 and March 29, 2012
to July 7, 2012.

(Compl. ¶¶ 66-72.)

Claims brought under the

FLSA are subject to a two-year statute of limitations if they
involve only an ordinary violation of the FLSA, and a three-year
statute of limitations if they involve a willful violation of
the FLSA.

See 29 U.S.C. § 255(a); Desmond v. PNGI Charles Town

Gaming, L.L.C., 630 F.3d 351, 357 (4th Cir. 2011).

Defendant

argues that Plaintiff’s claims should be subject to the FLSA’s
two-year statute of limitations for ordinary violations rather
than the three year statute of limitations for willful
16

violations of the FLSA.

Plaintiff concedes that under the two

year statute of limitations, her FLSA claims are time barred,
but she contends that Defendant’s conduct constituted a willful
violation of the FLSA.
A violation of the FLSA is willful “if the employer
either knew or showed reckless disregard for whether its conduct
was prohibited.”

Hantz v. Prospect Mortg., LLC, 11 F. Supp.3d

612, 616 (E.D.Va. 2014)(citing McLaughlin v. Richland Shoe Co.,
486 U.S. 128, 132 (1988)).

“If an employer acts unreasonably

but not recklessly, in determining its legal obligation” to the
employee then any violation is not willful.
U.S. at 135.

McLaughlin, 486

Thus, “[m]ere negligence on the part of the

employer with regard to compliance with the FLSA is not
sufficient to prove willfulness.”

Gionfriddo v. Jason Zink,

LLC, 769 F. Supp.2d 880, 890 (D. Md. 2011).

Ultimately, it is

the employee who bears the burden of proving that a violation is
willful.

See Desmond, 630 F.3d at 358.

Willfulness is

“ultimately a question of fact, [but] a plaintiff must present
sufficient evidence of willfulness to survive summary judgment.”
Hantz, 11 F. Supp. 3d at 617.
The record here unequivocally demonstrates that any
violation of the FLSA by Defendant was, at most, due to the
Defendant’s negligence and miscommunication about Plaintiff’s
work status with the company.

(See Def.’s Reply at 13-14.)
17

Plaintiff explained to payroll in late 2011 that she was on LWOP
because, while she “was proposed a few assignments to work on at
PPC,” she had “not accepted them officially, and [was] still
trying to negotiate what would be the best fit for me and PPC.”
(Romansik Decl. Ex. 18.)

When Defendant’s payroll department

asked why Plaintiff had failed to submit a timesheet on January
27, 2012, Plaintiff responded that “[t]here have a been a number
of potential projects mentioned to me but in the meantime, I’m
still on personal leave.”

(Id. at Ex. 38.)

During the second

time period where Plaintiff claims to have been working without
pay, March 29, 2012 to July 7, 2012, Plaintiff never logged onto
the time entry system or submitted a timesheet.

(Id. at Ex.

66.)
During every pay period where Plaintiff did not
receive a paycheck, Plaintiff either failed to submit a
timesheet or submitted only timesheets showing that she was on
LWOP for the entirety of the pay period.

Plaintiff alleges that

this is because she was being told to perform non-billable work
for Defendant but was never given a valid charge code for
recording her time.

However, as soon as Defendant’s human

resources department learned that Plaintiff was claiming to work
while billing time to LWOP, they immediately instructed
Plaintiff to cease working while billing time to LWOP, as they
could not permit anyone to work for free or without pay.
18

(Id.

at Ex. 42; Def.’s Mem. in Supp. at 10-12.)

Even if certain

individuals employed by Defendant were engaging Plaintiff to
support them in their non-billable proposal work while she was
billing her time to LWOP, the messages between Plaintiff, human
resources, and payroll clearly indicate that this situation was
not a willful or deliberate scheme by Defendant to circumvent
the requirements of the FLSA.
The record indicates that any violation of the FLSA
for failure to pay the Plaintiff for time worked are the result
of Plaintiff’s poor timekeeping practices and a breakdown in
communication rather than any reckless disregard for the
requirements of the FLSA.

A quick survey of previous cases

where courts have found that employers willfully violated the
FLSA confirms that any violation which occurred here fails to
rise to that level.

See, e.g., Herman v. Palo Grp. Foster Home,

Inc., 183 F.3d 468, 474 (6th Cir. 1999)(finding a willful
violation where the defendant ignored specific warnings they
were out of compliance with the FLSA); Martin v. Deiriggi, 985
F.2d 129, 136 (4th Cir. 1992)(finding a willful violation where
the defendant destroyed or withheld records to frustrate
investigations into their employment practices); Cubias v. Casa
Furniture and Bedding, LLC, No. 1:06cv386 (JCC), 2007 WL 150973,
at *3 (E.D. Va. Jan 16, 2007)(finding a willful violation where

19

the defendant split employees’ hours between two companies’
books to conceal their overtime work).
Because Plaintiff cannot show a willful violation of
the FLSA in this case, the two-year statute of limitations on
causes of action for ordinary violation of the FLSA applies to
Plaintiff’s claim.

Accordingly, Plaintiff’s FLSA claims are

time barred and the Court grants Defendant’s motion for summary
judgment on Count IV.
E.

Breach of Contract

Plaintiff’s Count V alleges that Defendant “entered
into an express or implied contract with the Plaintiff to pay
all wages earned,” and the Defendant “breached this contract by
failing to pay her the wages owed and accrued for the periods
November 16, 2011 – March 7, 2012 and again from March 29, 2012
to July 7, 2012.”

(Compl. ¶¶ 74-76.)

Defendant argues that

Plaintiff’s contract claim is time barred by Virginia’s three
year statute of limitations on causes of action arising from
oral contracts.

(Def.’s Mem. in Supp. at 27.)

However, this

argument is based entirely on a mistake as to the date on which
this action was filed.

Defendant is correct that this action

would be time barred if it had been filed on December 24, 2015.
As it was actually filed on December 24, 2014, it is not
entirely time barred.

20

Plaintiff’s argument that Plaintiff’s offer letter is
an employment contract is a non-starter.

Virginia is an at-will

employment state, and the offer letter contained a clear
indication that Defendant was hiring Plaintiff as an at-will
employee and it was not a contract.

See Cave Hill Corp. v.

Hiers, 264 Va. 640, 570 S.E.2d 7909, 793 (2002)(“In Virginia, an
employment relationship is presumed to be at-will.”).

However,

Plaintiff may still be able to recover for time worked under a
theory of implied contract and quantum meruit.
Quantum meruit recovery “is based upon an implied
contract to pay the reasonable value of services rendered.”
Hendrickson v. Meredith, 161 Va. 193, 198, 170 S.E. 602, 604
(1933).

“Where service is performed by one, at the instance of

another, and . . . nothing is said between the parties as to
compensation for such service, the law implies a contract, that
the party who performs the service shall be paid a reasonable
compensation therefor.”

Mongold v. Woods, 278 Va. 196, 203, 677

S.E.2d 288, 292 (2009)(quoting Rea v. Trotter, 67 Va. 585, 592
(1875)).

Because quantum meruit is a species of implied

contract, Virginia’s three year statute of limitations on
unwritten contracts applies.

See Va. Code §8.010-246.

As this

action was brought on December 24, 2014, Plaintiff is time
barred from recovering under quantum meruit for work performed
before December 24, 2011.
21

The series of emails from early 2012 submitted
alongside Plaintiff’s supplemental affidavit demonstrate that
Plaintiff was in frequent communication with executives at PPC
during periods of 2012 when she did not receive a paycheck.
(Pl.’s Corrected Supp. Affidavit [Dkt. 66].)

Reading these

emails in the light most favorable to the Plaintiff, a
reasonable juror could conclude that they corroborate the
Plaintiff’s claim that she was performing work for Defendant
during the portions of 2012 where she did not receive a
paycheck.

Accordingly, the Court denies Defendant’s motion for

summary judgment with respect to Plaintiff’s claim for breach of
implied contract.
IV. Conclusion
For the foregoing reasons, the Court grants the
Defendant’s Motion for Summary Judgment in part and denies the
Defendant’s Motion for Summary Judgment in part.
An appropriate order will issue.

March 18, 2016
Alexandria, Virginia

/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE

22